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Article Excerpt
Judicial independence is necessary to assure the rule of law and protection of rights; accountability in some form is necessary for legitimate judicial review in a democracy. (1) Rules about selection, tenure, and removal of judges are important parts of the "package" of provisions, practices, and institutional designs that influence the degree and shape of judicial independence and public accountability. This package included legal, institutional, political, psychological, sociological, and cultural elements that affect judicial independence in complex ways. These elements are often interdependent; a change in one may create, or call for, changes in others. This essay focuses on the selection and tenure rules that are parts of the package of institutional designs protecting the independence of Article III federal judges, in light of recent controversies over the nomination process and proposals for "term limits" for Supreme Court justices.
The U.S. Supreme Court justices, and the judges who serve in the federal district courts and circuit courts of appeals, are all Article III judges, appointed and holding office pursuant to Article III of the Constitution. (2) Nominated by the president and confirmed by the Senate, Article III judges hold office "during good Behaviour" and their salary cannot be reduced once in office. On conventional understandings, they can be removed from office only by impeachment in the House and conviction in the Senate, by a two-thirds vote, for "Treason, Bribery, or other high Crimes and Misdemeanors." Article III judges are not the only federally appointed judges, but function as part of a much larger system of judging and justice that includes non-Article III federal judges and the state-court judges.
The appointments process for Article III judges is a political one by constitutional design. The process allows for a form of democratic participation, through elected representatives, in the selection of federal judges and for the possibility of democratic accountability for those selections. Through a variety of rules-some constitutional, others a matter of Senate or White House practice-this process has worked in complex ways to accommodate concerns by the political branches about partisan affiliation and ideology, competence, and the demographic mix of appointees. Although most nominees to the Article III courts continue to be approved by overwhelming majorities in the Senate, many observers believe that the rancor of the process in recent years has sharpened, leading to suggestions for change in the Senate's voting rules on nominations. The political nature of the process has the potential for disputes to become so contentious that some fear they could threaten the culture and practice of judicial independence in the Article III courts.
For these reasons the tenure rules assume especial importance in safeguarding judicial independence. The long tradition that Article III judges are not removed from office based on disagreement with their legal decisions has been an important part of the package. A number of scholars have recently argued that the terms of Supreme Court justices should be limited to eighteen years. Comparative experience suggests that serious levels of judicial independence can be attained in some settings with long, nonrenewable terms (and without life tenure). But such a change in an established and ongoing system, with an existing package of institutional features operating in a specific constitutional culture, could have ramifications elsewhere-for the confirmation process, for the internal dynamics of the Court, for its relationship to the lower federal and state courts, possibly for the stability of law-that require careful and cautious consideration.
The Article III federal courts, headed by the Supreme Court, have functioned as judicial anchors for the supremacy of federal law in a large country, with many different selection systems (including elections for fairly short terms in some of the state courts), that has managed to sustain a serious commitment to the rule of law. The federal courts are part of the overall package that is the U.S. court system, whose commitment to the rule of law under the Constitution has accommodated the states' freedom to adopt different approaches to judicial selection and tenure, perhaps in part by assuring strong tenure and salary protections for the independence of the Article III federal judiciary. (3) Our public representatives and fellow citizens must think hard before deciding whether it would make sense to change one of the pillars of this ongoing system.
There are different meanings and degrees of judicial independence, different forms of accountability, and different balances between independence and judicial accountability. While all who act as judges are expected to exercise independent judgment, in the sense of being impartial between the parties and not having a personal stake in the dispute, there is disagreement about how independent from the public, or from elected political branches, judges should be in interpreting and applying the law. There is, moreover, a range of accountability mechanisms, both within the federal judiciary (giving public reasons for decisions, appeal to a higher court, or internal discipline, for example) and by the political branches that appoint federal Article III judges, fund the courts, and enact the laws, including those concerning federal courts' jurisdiction. There are ranges of political responses to unpopular decisions (including constitutional amendment) that may be more, or less, consistent with the decisional independence of judges. Judges who must stand for frequent election or reappointment have more reason to be concerned that making an unpopular decision will harm their livelihood than do judges appointed under Article III. Indeed, the decisional independence promoted by the tenure and salary protections of Article III is often admired, even as the consequences of this independence in checking other branches of government can be highly contentious.
The selection and tenure rules for Article III judges affect both the decisional independence of individual judges and the institutional independence of the judiciary as a whole (4). But these selection and tenure rules do not function in isolation from other legal rules, including those governing the courts' jurisdiction, when it is exercised, who can invoke it, and who can change it; the finality of the courts' judgments, who they bind, and how judgments are enforced; (5) judges' salaries, court funding and control of administration, hiring, and location of work; (6) restrictions on judges' nonjudicial speech or activities; (7) and availability of pensions for disability or retirement (8). Legal structures alone, moreover, do not necessarily result in judicial independence; they are only part of the story. Some political scientists, for example, argue that effective party competition in electoral politics is keenly associated with independent courts (9). Important as well are the professional norms of lawyers and judges, (10) the political culture and popular conceptions about law, (11) and the capacities of all branches of government for self-restraint (12). But it seems plausible to assume, at least for present purpose, that selection and tenure rules play some role in supporting commitments to the independence of judging and the rule of law.
A brief look at the history and structure of the most directly relevant constitutional provisions may help set parameters for further analysis of what judicial independence is for, what judge are to be independent to do, and how the selection methods and tenure rules relate to these goals. In a sense, the question of what Article III judges were to be independent from is most readily answered; judges were to be independent of popular passions and certain kinds of pressures from other branches of the government. These were the purposes of the provisions for life tenure, the high standard for removal by impeachment, and the clause that salaries cannot be diminished while a judge is in office. The harder question is, what were judges to be independent to do? Some answers: they were to be independent to judge according to law; they were to have the independence to interpret the law in order to render judgment; they were to protect minorities from popular passions that would violate their legal rights; and they were to check the other branches of government when they departed from the fundamental...
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